Citation Nr: 0010254
Decision Date: 04/18/00 Archive Date: 04/28/00
DOCKET NO. 97-16 859 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: National Veterans Legal
Services Program
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
INTRODUCTION
The appellant had active military service from August 1969 to
February 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1996 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in San Juan, Puerto Rico, which denied service connection for
PTSD.
The issue on appeal has been characterized as shown above
because there were prior final decisions on this claim.
Specifically, in November 1994 the Board denied a claim of
entitlement to service connection for a psychiatric disorder
to include PTSD. In light that decision of that decision the
Board has a legal duty to consider the requirement of whether
new and material evidence has been submitted regardless of
whether the RO failed to do so, as they did in this case.
Barnett v. Brown, 8 Vet. App. 1, 4 (1995).
In March 1999, a hearing was held before the undersigned, who
is the Board member making this decision and who was
designated by the Chairman to conduct that hearing pursuant
to 38 U.S.C.A. § 7107(c) (West Supp. 1999).
The Board must consider all documents submitted prior to its
decision and review all issues reasonably raised from a
liberal reading of these documents. Suttmann v. Brown, 5
Vet. App. 127, 132 (1993) (citations omitted). Where such
review reasonably reveals that the claimant is seeking a
particular benefit, the Board is required to adjudicate the
issue or, if appropriate, remand the issue to the RO for
development and adjudication; however, the Board may not
ignore an issue so raised. Id. On the other hand, the Board
is not required to anticipate a claim for a particular
benefit where no intention to raise it was expressed by the
appellant. See Talbert v. Brown, 7 Vet. App. 352, 356-57
(1995); see also Brannon v. West, 12 Vet. App. 32, 34-35
(1998) ("[B]efore [the RO or Board] can adjudicate an
original claim for benefits, the claimant must submit a
written document identifying the benefit and expressing some
intent to seek it").
In this case, the appellant's substantive appeal in May 1997
discussed the failure of the RO to comply with remands issued
prior to the 1994 Board decision. At the hearing in March
1999, the appellant's representative discussed evidence
before the Board in 1994 and argued that the Board's 1994
decision should be vacated based on failure of the duty to
assist and comply with prior remand instructions.
It is not patently clear whether the appellant's intention is
to specifically initiate a claim of clear and unmistakable
error (CUE) in the 1994 Board decision. Such a claim is not
currently before the Board. There are specific procedural
steps that must be followed in order to initiate a claim of
CUE in a Board decision. See 38 C.F.R. § 20.1400 et. seq.
(1999).
The only claim that is properly before the Board at this time
is the issue of whether new and material evidence has been
submitted to reopen the claim of service connection for PTSD.
Nonetheless, the appellant is hereby advised that if he
wishes to specifically initiate a collateral attack of the
1994 Board decision based on CUE, he would need to file a
formal claim with the Board following specific procedures
contained in 38 C.F.R. § 20.1400 et. seq. (1999).
FINDINGS OF FACT
1. In a November 1994 decision, the Board denied, on the
merits, the claim for service connection for PTSD.
2. None of the evidence received since 1994 in support of
the appellant's attempt to reopen his claim for service
connection for PTSD is material.
CONCLUSIONS OF LAW
1. The November 1994 Board decision that denied service
connection for PTSD is final. 38 U.S.C.A. §§ 7103(a) and
7104 (West 1991 & Supp. 1999).
2. New and material evidence has not been received, and the
appellant's claim for service connection for PTSD is not
reopened. 38 U.S.C.A. §§ 5108 and 7105 (West 1991);
38 C.F.R. § 3.156(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Since 1983, the appellant has filed several claims for
service connection for PTSD. To briefly summarize the
evidence of record, he alleges that he served in a combat
zone in Vietnam and that he has PTSD as a result of various
stressors (i.e., being subjected to enemy attacks, firefights
with the enemy while on patrol, loss of a friend "Rafael,"
the death or wounding of "Chuck"). The extensive medical
evidence of record, dated from 1972, shows various diagnoses
of PTSD beginning in approximately 1982. Although diagnosis
of PTSD had been rendered, medical professionals also
rendered opinions that the appellant did not meet the
diagnostic criteria for PTSD because the alleged stressors
were insufficient to cause PTSD.
In a November 1994 decision, the Board denied a claim for
service connection for PTSD finding that (a) the appellant
did not engage in combat with the enemy during his service in
Vietnam; (b) that there was no corroboration of the reported
stressors; and (c) that he did not fulfill the diagnostic
criteria for PTSD since he had not experienced events during
service that were outside the range of usual human experience
and would be markedly distressing to almost anyone. When the
Board disallows a claim, a claim based upon the same factual
basis may not be considered. 38 U.S.C.A. § 7104(b) (West
1991). A decision of the Board is final unless the Chairman
orders reconsideration. 38 U.S.C.A. §§ 7103(a) and 7104(a)
(West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). In
March 1995, the Board denied the appellant's motion for
reconsideration. Therefore, the November 1994 Board decision
is final.
In order to reopen a claim which has been previously denied
by the Board and which is final, the claimant must present
new and material evidence. 38 U.S.C.A. § 5108 (West 1991).
New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363.
When presented with a claim to reopen a previously finally
denied claim, VA must perform a three-step analysis. Elkins
v. West, 12 Vet. App. 209 (1999). First, it must be
determined whether the evidence submitted by the claimant is
new and material. Second, if new and material evidence has
been presented, it must be determined, immediately upon
reopening the claim, whether the reopened claim is well
grounded pursuant to 38 U.S.C. § 5107(a) based upon all the
evidence and presuming its credibility. There is no duty to
assist in the absence of a well-grounded claim. Epps v.
Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub
nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters
v. West, 12 Vet. App. 203 (1999). Third, if the reopened
claim is well grounded, VA may evaluate the merits of the
claim after ensuring that the duty to assist under 38 U.S.C.
§ 5107(b) has been fulfilled.
In March 1995, the appellant again filed a claim for service
connection for PTSD. The September 1996 rating decision on
appeal denied that claim on the merits, without considering
the preliminary issue of whether the appellant had submitted
new and material evidence to reopen this claim. However, the
Board has jurisdiction to consider the issue of whether new
and material evidence has been submitted because that issue
is part of the same "matter" of whether the appellant is
entitled to service connection for this disability. Bernard
v. Brown, 4 Vet. App. 384, 391 (1993) (interpreting the
provision contained in 38 U.S.C.A. § 7104(a) that the Board
has jurisdiction to decide "all questions in a matter" on
appeal). When a claimant submits a claim for service
connection for a disability, the question of whether there is
new and material evidence to reopen the claim is implicated
where there is a prior final decision regarding that claim.
Id. at 392. Although these are two separate questions, they
are components of a single claim for service connection. Id.
Thus, the issue on appeal has been recharacterized on the
first page of this decision. See also Barnett v. Brown, 8
Vet. App. 1, 4 (1995) (Board has a legal duty to consider the
requirement of whether new and material evidence has been
submitted regardless of the RO's actions); Wakeford v. Brown,
8 Vet. App. 237 (1995) (VA failed to comply with its own
regulations by ignoring issue of whether any new and material
evidence had been submitted to reopen the veteran's
previously and finally denied claims).
When the Board addresses an issue that was not addressed by
the RO, consideration must be given to whether the appellant
will be prejudiced by the Board's consideration of the issue
in the first instance. See 38 U.S.C.A. §§ 5104, 5107(a),
7104(a), and 7105(d)(1) (West 1991); 38 C.F.R. §§ 3.103(a),
3.103(c)(1), 3.103(c)(2), 3.103(d), 19.9, 19.25, 19.29, and
19.31 (1999); see also VAOPGCPREC 16-92 (1992). Therefore,
the Board must decide whether the appellant will be
prejudiced by its consideration of the issue.
Although the relevant statutes and regulations regarding new
and material evidence were not included in the statement of
the case, the appellant's due process rights are not violated
by this Board decision. When the RO denied the claim of
entitlement to service connection for PTSD in September 1996,
it necessarily reviewed all of the evidence of record to
reach that decision. Since the Board must review all of the
evidence of record in order to determine whether new evidence
has been presented and whether it is material to the
underlying issue, the appellant is not prejudiced by the
Board's consideration of the preliminary issue of whether new
and material evidence has been submitted. Essentially, in
adjudicating this claim on the merits, the RO gave the
appellant more of a review than he was entitled to.
The evidence received subsequent to November 1994 is presumed
credible for the purposes of reopening the appellant's claim
unless it is inherently false or untrue, or it is beyond the
competence of the person making the assertion. Duran v.
Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3
Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8
Vet. App. 69, 75-76 (1995). Since November 1994, the
following evidence has been received: (1) the appellant's
contentions, including those raised at a personal hearing in
2000; (2) VA outpatient records for treatment in 1994 and
1995; (3) medical records from Hector Cases, M.D., and (4) a
document from the Department of the Army indicating that the
appellant was authorized to wear the Republic of Vietnam
Gallantry Cross with Palm Unit Citation Badge.
To the extent that the appellant contends that he has PTSD as
a result of his Vietnam experiences, this evidence is not
new. Prior to 1994, he had made numerous detailed statements
concerning such allegations. He has not submitted any new
contentions regarding this claim; he has merely, at best,
repeated his prior assertions. This evidence is cumulative
of evidence associated with the claims file at the time of
the November 1994 Board decision and is not new for purposes
of reopening a claim.
To the extent that the additional medical evidence shows
diagnosis of and treatment for PTSD, this evidence is also
not new. The medical evidence obtained in connection with
the appellant's prior claims showed treatment for PTSD. This
evidence is cumulative of evidence associated with the claims
file at the time of the November 1994 Board decision and is
not new for purposes of reopening a claim.
The rest of the evidence received since 1994 is new in that
it was not previously of record. It is necessary, therefore,
to decide if this evidence is material. To be material, it
must be (a) relevant in that it bears directly and
substantially on the matter under consideration, and (b) so
significant, either by itself or with other evidence, that it
must be considered in order to fairly decide the claim. See
38 C.F.R. § 3.156(a) (1999) (emphasis added).
The Board concludes that the appellant has not submitted
material evidence. The bases of the prior denial of this
claim was that the appellant did not engage in combat with
the enemy during his service in Vietnam, that there was no
corroboration of the reported stressors, and that he did not
fulfill the diagnostic criteria for PTSD. There remains a
lack of such evidence.
In order for a claim for service connection for PTSD to be
successful, there must be (1) medical evidence diagnosing the
condition in accordance with 38 C.F.R. § 4.125(a); (2)
credible supporting evidence that the claimed inservice
stressor actually occurred; and (3) a link, established by
medical evidence, between the current symptoms and the
claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999); see
also Cohen v. Brown, 10 Vet. App 128 (1997). "Just because
a physician or other health professional accepted appellant's
description of his Vietnam experiences as credible and
diagnosed appellant as suffering from PTSD does not mean the
[Board is] required to grant service connection for PTSD."
Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).
A determination as to whether the appellant is a veteran of
combat is particularly significant in a PTSD claim because he
is entitled to have his lay statements as to his alleged
stressors accepted, without corroboration, if he engaged in
combat with the enemy. See Gaines v. West, 11 Vet. App. 353
(1998). See also VAOPGCPREC 12-99. If a claimant did not
engage in combat with the enemy, there must be credible
supporting evidence of record that the alleged stressors
actually occurred in order to warrant service connection.
Lay testimony is insufficient, standing alone, to establish
service connection. Cohen, 10 Vet. App. at 147 (citing
Moreau, 9 Vet. App. at 395).
The additional medical evidence submitted since 1994 merely
shows continued treatment for PTSD. As indicated above, the
fact that the appellant had been diagnosed with PTSD was
previously of record. Medical professionals had previously
opined that the appellant's PTSD was due to his experiences
in Vietnam. Those opinions were rejected by the Board in its
adjudication of the appellant's claim on the merits. There
are no additional medical opinions for consideration.
There has been no new evidence submitted indicating that the
appellant engaged in combat with the enemy in Vietnam. He
has submitted no new information concerning his alleged
stressors that would warrant additional attempts to verify
the claimed stressors with the United States Armed Services
Center for Research of Unit Records (USASCRUR). The RO
previously asked the appellant to provide specific details as
to his alleged inservice stressors (names, places, dates,
units of assignment, description of events). With the
information provided, attempts were made to verify the
reported stressors.
The only evidence submitted that is arguably material is the
document showing that the appellant was awarded the Republic
of Vietnam Gallantry Cross. This information was not known
previously. The Vietnam Cross of Gallantry with Palm was
awarded by the Vietnamese government and may, or may not,
signify that the appellant engaged in combat. This document,
standing alone, is not material because it does not
substantiate that the appellant engaged in combat during his
period of military service. This document, when considered
with the rest of the evidence, is also of no consequence,
since the evidence developed prior to 1994 was sufficient for
the Board to conclude that he did not engage in combat with
the enemy. The new document submitted by the appellant
offers nothing that would refute that conclusion. This means
that the new evidence is cumulative in nature, as it is not
so significant that it must be considered to fairly decide
the claim.
The Board is cognizant of the appellant's own statements to
the effect that he experiences symptoms of PTSD that are due
to stressors while in service. However, the evidence does
not indicate that he possesses medical expertise, he is not
competent to render an opinion on a matter involving medical
knowledge, such as diagnosis or causation. See Edenfield v.
Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown,
8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App.
91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992).
Accordingly, the Board finds that the evidence received
subsequent to November 1994 is not new and material and does
not serve to reopen the appellant's claim for service
connection for PTSD. 38 U.S.C.A. §§ 5108 and 7105 (West
1991); 38 C.F.R. § 3.156(a) (1999).
ORDER
As new and material evidence has not been received to reopen
the appellant's claim for service connection for PTSD, the
claim is not reopened, and the appeal is denied.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
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